45 Kan. 78 | Kan. | 1890
The opinion of the court was delivered by
Charles E. Mayer brought this action against Moses Waters to recover $1,770, alleged to be due for the use and occupation of certain buildings owned by the plaintiff, and situate on the Eort Riley military reservation,' consisting of a store-building, a club-house, and a residence. On November 25, 1879, Moses Waters, who was then, and since then has been, the duly-appointed post-trader at the Eort Riley military reservation, entered into a written lease with Charles E. Mayer, the owner of the buildings, for a term of one year from April 1, 1880, at a rental of $30 per month, payable in quarterly installments. Waters took possession under this agreement, and although no written lease was afterward executed, he continued to occupy and use the buildings as post-trader until the commencement of this action, and paid rent for the same until February 1, 1883. After that time, he declined to make any further payment, claiming that certain military orders and proceedings which had been had relieved him of liability to Mayer for the use
The case was submitted to the court, without a jury, on oral and documentary evidence, and the court found that Mayer was entitled to recover rent for the use of his premises from February 1, 1883, to September 20, 1883, when he received notice of the military proceedings aforesaid, at the rate of $30 per month, but that the plaintiff was not entitled to recover for the use of the premises after receiving notice of the proceedings had by the military authorities. Each of the parties excepted to the findings and judgment of the court, and both are here alleging error. It is insisted on behalf of Waters that under an act of Congress and certain military regulations, Mayer was without authority over the buildings, or to collect rent for the same, and as he could not lawfully collect rent, Waters was not legally liable for their use and occupation. Congress has enacted “That every military post may have one trader, to be appointed by the secretary of war, on the recommendation of the council of administration, approved
“Post-traders will actually carry on the business themselves, and will habitually reside at the station to which they are appointed. They will not farm out, sub-let, transfer, sell or assign their business to others.
“Post-traders will' be permitted to er'ect buildings for the purpose of carrying on their business upon such part of the military reservation or post where they are assigned as the commanding officer may direct. Such buildings will be in convenient reach of the garrison.
“When a trader is removed from his post, he has a right to remove and dispose of the material of the buildings erected by him as his own property. He cannot lease or sell his buildings to another post-trader without the permission of the military authorities; but such permission would have the same force as a license to a new post-trader to erect such a building at that spot.”
It is urged that Mayer had leased the buildings when he was not a post-trader, and also without license from the military authorities; and this being in violation of the regulations, he had no right to collect rent from Waters or any one else. It is true that Mayer was not a post-trader when the original lease was executed, nor has he held that position since that time; and it is also true, that he never received from the military authorities express permission to rent.the buildings. It appears that the buildings were originally erected by Robert Wilson, a post-trader at Fort Riley, under due license from the war department. He sold them to Henry F. Mayer, ■who was also post-trader at the same place, and Henry F.. Mayer in turn sold them to his son, the plaintiff, in 1876; but the plaintiff was not then, and never has been, a post-trader at Fort Riley, although he was the partner of one Mc-Gonegal, who was the post-trader for the years 1871 and 1872.
We think that Waters was liable to the plaintiff for the use and occupation of the buildings, both before and after the
“Buildings erected by post-traders on a military reserve, in conformity to this order, are erected for the mutual benefit of the government and the trader, and are not to be regarded as buildings would be if erected by trespassers, or even by tenants under leases in which no provision is made therefor. They are erected under a license from the government, and for the mutual benefit of both parties. Under these circum*83 stances, I am of opinion that, by the proper construction of the license, these buildings were not intended to become a part of the realty after their erection, but were to continue the property of the traders, and, therefore, when a trader is removed from his post, I have no doubt that he has a right to remove the building from the place where it was erected, and, when removed, he can dispose of the materials as his own property.” (14 Op. Attys. Gen. 125.)
It was held in the same opinion that such license did not authorize a lease or conveyance of the buildings to others for their occupation and use, without the permission of the military authorities; that the right was confined solely to the removing of the buildings from the premises. The officers had full authority to order the removal of the buildings, and to enforce such order; but so long as they permitted the buildings to remain upon the reservation, they were without authority to relieve the trader from paying for their use and occupation. The order made was that Mayer should remove the buildings from the reservation within a reasonable time; but instead of enforcing the regulation, or the order, the officers permitted the buildings to remain until the commencement of this action. The buildings have been used continuously for the business of the post-trader, and it does not appear that there was any necessity for their vacation, or that the trader was using them for any improper purpose. This continued use, with full knowledge of the ownership and rights of the plaintiff, must be regarded as a waiver of the regulation, and a sufficient permission for the leasing of the buildings to Waters. This seems to have been the view of the war department, as the adjutant general, in response to a letter addressed to him with reference to the occupancy of these buildings, said: “If the trader occupies buildings belonging to you, without being willing to purchase them, or pay rent to you as you demand, you should seek a remedy in the civil courts.” As late as January 24, 1888, the commanding officer at Fort Eiley, in response to an application for a military order to compel the post-trader to pay for the use of the buildings, stated: “It is not understood why Mr. Mayer does
We are asked to render such judgment in the case as the court below should have rendered in case of a reversal; but as the case was submitted upon testimony which is not harmonious, and as the condition of the buildings and the amount of the repairs that have been expended have, not been stated or agreed upon, we are unable to direct the judgment that should be entered. The judgment of the court below will, therefore, be reversed, and the cause remanded for a new trial.